April 05, 2017

The Case for Originalism, Part Three: The Baseline Comparison of Originalism with Constitutional Eclecticism

This is the third of a series of posts on the "great debate" between originalists and living constitutionalists. In this post, my aim is to frame the debate. These posts introduce ideas that I present in greater depth in a work-in-progress:

Making the full case for originalism in full is a very difficult task. Why? Because there are many different forms of living constitutionalism, ranging from common law constitutionalism to the moral readings approach and an unconstrained form of Thayerianism that would eliminate the institution of judicial review. This diversity suggests that a complete case for originalism would involve a series of pairwise comparisons of originalism with each of its rivals. Because there are at least nine or ten distinct versions of living constitutionalism, stating the case in terms using pairwise comparisons would be both lengthy and involve significant duplications. To make the problem more manageable, I will begin with a single comparison: public meaning originalism versus the constitutional status quo. But in order to execute that comparison, we first need to answer the question, "What is the constitutional status quo?"

This post advances the thesis that the constitutional status quo is best characterized as "Constitutional Eclecticism." This eclecticism has two dimensions: (1) individual judges affirm different methods of constitutional interpretation and construction on different occasions; and, (2) different judges deploy different mixes of methods. That is, the eclecticism that characterizes the status quo is both intrajudicial and interjudicial.

This characterization of the status quo should not be controversial. Judges sometimes look to precedent, sometimes to historical practice, sometimes to originalism, sometimes to policy arguments, sometimes to principles or fairness, sometimes to a principle of deference, and so forth. This mix of methods is not ordered by some metaprinciple or theory; it is ad hoc.

Some nonoriginalists may object at this point. They may argue that some other theory is a better candidate for the status quo. The two most likely candidates closely resemble Constitutional Eclecticism: (1) Constitutional Pluralism and (2) Common Law Constitutionalism. At this point, I am going to take a shortcut. Demonstrating that the status quo is better characterized as eclectic would require that we evaluate a large number of judicial opinions and show that they do not employ either of these two theories--that would be a very large task and cannot be undertaken in a blog post. Instead, I will simply assert that there is very little evidence that these academic theories have ever been explicitly affirmed by constitutional actors. Moreover, the very fact that both common law constitutionalists and constitutional pluralists claim that their theory is the status quo is evidence that eclecticism is a better characterization. If the status quo were eclectic, then we would expect that some decisions would include common law elements, but others would look more like pluralism. Moreover, even if I am wrong and one of these two views is the status quo, they both resemble eclecticism. For this reason, even if the assumption that the status quo is Constitutional Eclecticism is not quite correct, most of the comparisons made between originalism and eclecticism will be valid comparisons with the status quo (as Constitutional Pluralism or Common Law Constitutionalism).

Given the assumption that the status quo is a form of eclecticism, certain conclusions follow. Eclecticism on a multi-member court like the Supreme Court will have certain consequences. Because different judges employ different methods, outcomes will frequently be the result of compromise. In some cases, the compromises will be hidden behind an opinion that does not fully reflect the reasons for the decision. In other cases, the judges will not be able to agree on a compromise opinion: this results in fractured opinions, where there are multiple rationales, no one of which commands a majority. This will have consequences once we begin to consider arguments for originalism and against status-quo eclecticism.

One more point: there is one more alternative to characterizing the status quo as eclectic. It might be argued that the Supreme Court is actually a superlegislature and that the Justices simply vote their ideological preferences. This characterization is the basis for "attitudinalism"--a theory of judicial decisionmaking advanced by political scientists. We will consider the superlegislature theory in due course. At this stage in the argument, I am putting this possibility to the side. Because the superlegislature theory is so unattractive, it would stack the deck in favor of originalism to adopt this characterization of the status quo as the baseline against which the basic arguments in favor of originalism are advanced.

The next post in the series will discuss the Fixation Thesis: the claim that the linguistic meaning or communicative content of the constitutional text is fixed at the time each provision is framed and ratified.